In 1970, New York passed the most permissive abortion law in America, one that defined the state as the country’s abortion refuge. Overnight, a new industry materialized in New York City, promoting itself to women across the country. The pitches were often blunt. A newspaper ad from the time inquired, “Want to be un-pregnant?”
Thirty-five years later, New York has the highest abortion rate in America. In 2000, the last year for which good data are available, 39 out of every 1,000 women in the state ended a pregnancy, for a total of 164,000 abortions that year. In America, one of every ten abortions occurs in New York, and in New York, seven of every ten abortions are performed in New York City. In absolute terms, there are more abortions performed on minors, more repeat abortions, and more late abortions (over 21 weeks) in New York City than anywhere else in the country. In parts of the city, the ratio of abortions to births is one to one.
Over the past twenty years, while legislatures have circumscribed access to abortion in state after state, especially for the poor and the young, New York has remained an island of unrestricted abortion rights. Medicaid pays for abortions for low-income women. Teenagers don’t need a parent’s permission to have an abortion. There are no 24-hour waiting periods. Thirty-four major clinics in New York City each perform more than 400 abortions per year.
New York becomes more pro-choice every year. After years of electoral free fall, the New York Right to Life Party failed to win enough votes in 2002 to stay on the ballot. The party doesn’t even have a Website anymore. The New York Right to Life Committee, which founded the national anti-abortion movement in 1967, hasn’t had a legislative victory in years. No pro-life candidate can win statewide office in New York. Ambitious Republicans climbing toward the governor’s mansion, like George Pataki, and now John Faso, hastily ditch their pro-life pasts. New York City’s mayor is one of the most pro-choice politicians in the country.
In short, New York is the abortion capital of America.
The United States is slowly turning into two places when it comes to abortion. In one, easy access to the procedure is being eroded by regulations, while conservative legislators dream up new restrictions, waiting periods, and consent laws. In the other, abortion is accessible, inexpensive—often government-subsidized—and safeguarded by powerful interest groups. The Supreme Court set the country down this path in 1992. In Planned Parenthood v. Casey, the Court retreated from a core principle of Roe v. Wade and upheld several restrictions in a Pennsylvania law called the Abortion Control Act. States, the Court said, could force women to wait 24 hours before having an abortion, and they could require doctors to read “informed consent” scripts to women before an abortion. The Court only struck down a more onerous section of the act that required women to notify their husbands before seeking abortions. The test for any future state regulation, the Court decreed, was whether it constitutes an “undue burden,” defined as a law that places a “substantial obstacle” in the path of a woman seeking an abortion.
The Casey decision inspired a crusade by pro-life lawyers. True, the Court had not overturned Roe, but the right believed Casey was the go-ahead to gut it. One line in Chief Justice William Rehnquist’s dissent stood out as particularly inspiring: “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.” The new strategy would be to systematically test the boundaries of what the Court meant by “undue burden” and “substantial obstacle.” Pro-life lawyers hatched a series of increasingly clever legal restrictions that have defined the abortion wars for the past decade and a half.
Now we are at another turning point. The Supreme Court will soon decide a case that may allow states to go well beyond current abortion restrictions. Last week, the Court heard arguments in Ayotte v. Planned Parenthood, a challenge to New Hampshire’s parental-consent law and perhaps the most important abortion case since Casey. The New Hampshire law prevents a doctor from performing an abortion on a minor until 48 hours after one of her parents has been notified. Most similar laws have an exception to the waiting period if the minor’s health is at risk, but the only exception in the New Hampshire law is if the girl is about to die. At stake are two issues. One is whether New Hampshire’s law is unconstitutional because it lacks a health exception, a feature of abortion restrictions that the Court has regularly required. The second issue is technical but of greater consequence. Until now, doctors and patients have been able to ask courts to strike down abortion restrictions if some potential harm can be proved. But the new standard requested by New Hampshire, and supported by the Bush administration, is to allow courts to leave potentially unconstitutional abortion laws intact unless it can be proved that application of the law is unconstitutional in every case.